“When child support is calculated under s. 4(b), the express wording of s. 4(b)(i) does not permit deviation from the Guideline figures for the first $150,000 of the paying parent’s income. Of course, the application of other sections of the Guidelines, such as the s. 10 undue hardship provisions and the s. 7 special expense provisions, may subsequently permit deviation from this figure. For that portion of the paying parent’s income over $150,000, the strict Guidelines amount is immediately open to review; under s. 4(b)(ii) any amount attributable to income above the $150,000 threshold can be reduced or increased by a court if it is of the opinion that the amount is inappropriate having regard to the condition, means, needs and other circumstances of the children, and the financial abilities of the spouses. Nevertheless, based on the ordinary meaning of the provision, its context in the overall child support scheme, and the purposes of the Guidelines, I find that in all cases Parliament intended that there be a presumption in favour of the Table amounts. I agree with Abella J.A. that the words “Presumptive Rule” found in the marginal note beside s. 3 of the Guidelines are relevant in this regard. Accordingly, the Guideline figures can only be increased or reduced under s. 4 if the party seeking such a deviation has rebutted the presumption that the applicable Table amount is appropriate. Counsel for the appellant conceded this point in oral argument.
The recognition of a presumption in favour of the Guideline figures does not compel a party seeking a deviation from this amount to testify or call evidence. No unfavourable conclusions should be drawn from this decision. Indeed, in some cases, such a party may not be able to provide relevant evidence. Parties seeking deviations from the Table amounts may simply choose to question the evidence of the opposing party. Whatever tactics are used, the evidence in its entirety must be sufficient to raise a concern that the applicable Table amount is inappropriate. To this end, I agree with Lysyk J. of the British Columbia Supreme Court in Shiels v. Shiels, 1997 CanLII 767 (BC SC), [1997] B.C.J. No. 1924 (QL), at para. 27, that there must be “clear and compelling evidence” for departing from the Guideline figures.
Francis v. Baker, [1999] 3 SCR 250, 1999 CanLII 659 (SCC) at 42-43